Christopher Harbridge v. Arnold Schwarzeneggar

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 3, 2018
• Docket: 15-55841
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHRISTOPHER HARBRIDGE, No. 15-55841

Plaintiff-Appellant, D.C. No. 2:07-cv-04486-GW-AS

v. MEMORANDUM* ARNOLD SCHWARZENEGGER; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Submitted October 1, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

Christopher Harbridge, a California state prisoner, appeals pro se from the

district court’s judgment in his 42 U.S.C. § 1983 action alleging retaliation and

other constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009) (summary

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). judgment and dismissal under Fed. R. Civ. P. 12(b)(6)); Wilhelm v. Rotman, 680

F.3d 1113, 1118 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915A). We may

affirm on any basis supported by the record. Gordon v. Virtumundo, Inc., 575 F.3d

1040, 1047 (9th Cir. 2009). We affirm in part, reverse in part, and remand.

Dismissal of Harbridge’s claims regarding the hearing on the Rules

Violation Report and resulting discipline (claims 1-4, 6) was proper because

Harbridge failed to allege facts sufficient to state any claim. See Wilhelm, 680

F.3d at 1121 (a complaint must state a plausible claim to relief to survive screening

under 28 U.S.C. § 1915A). First, Harbridge failed to allege membership in a

protected class to support his equal protection theory. See Barren v. Harrington,

152 F.3d 1193, 1194 (9th Cir. 1998) (order) (To state a Fourteenth Amendment

equal protection claim, a plaintiff must allege “that the defendants acted with an

intent or purpose to discriminate against the plaintiff based upon membership in a

protected class.”). Second, Harbridge failed to allege facts linking the alleged

retaliation and his protected speech. See Wood v. Yordy, 753 F.3d 899, 905 (9th

Cir. 2014) (“[M]ere speculation that defendants acted out of retaliation is not

sufficient.”). Third, Harbridge failed to allege facts showing any denial of the due

process protections to which he was entitled as part of the disciplinary proceedings.

See Superintendent v. Hill, 472 U.S. 445, 455 (1985) (requirements of due process

are satisfied if “some evidence” supports disciplinary decision); Wolff v.

2 15-55841 McDonnell, 418 U.S. 539, 563-71 (1974) (setting forth due process requirements

for prison disciplinary proceedings); see also Wolff, 418 U.S. at 566 (“Prison

officials must have the necessary discretion . . . to refuse to call witnesses [for

reasons such as] irrelevance [or] lack of necessity . . . .”).

The district court properly granted summary judgment on Harbridge’s

retaliation claim based on a single missed meal because Harbridge failed to raise a

genuine issue of material fact as to whether the denial of the meal was because of

Harbridge’s protected speech. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

Cir. 2005) (elements of retaliation claim in the prison context).

The district court properly granted summary judgment on Harbridge’s

retaliation claims based on his confinement during disciplinary detention (claims

7-9) because Harbridge failed to raise a genuine dispute of material fact as to

whether defendants did not have a legitimate correctional purpose for confiscating

Harbridge’s personal items during disciplinary detention and denying him outdoor

exercise. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (legitimate

penological goals includes “preserving institutional order and discipline”). The

district court did not abuse its discretion in excluding Mr. Markarian’s declaration.

See Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007) (“Evidentiary rulings

made in the context of summary judgment motions are reviewed for abuse of

discretion . . . .”). We reject as unsupported by the record Harbridge’s additional

3 15-55841 conclusory allegations regarding the conditions of confinement during disciplinary

detention.

The district court properly granted summary judgment on Harbridge’s

conditions of confinement claim because Harbridge failed to raise a genuine

dispute of material fact as to whether he suffered an extreme deprivation. See

Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“[O]nly those deprivations denying the

minimal civilized measure of life’s necessities are sufficiently grave to form the

basis of an Eighth Amendment violation.” (citation and internal quotation marks

omitted)).

The district court properly dismissed Harbridge’s claims of supervisory

liability, including his claims against the California Correctional Peace Officers

Association, because Harbridge failed to allege facts showing direct involvement

or a sufficient causal connection between the actions of supervisors and the alleged

constitutional violations. See Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir.

2013) (requirements for supervisory liability). The district court properly

dismissed Harbridge’s claim based on respondeat superior because there is no

vicarious liability under § 1983. See id.

The district court properly dismissed Harbridge’s due process claims based

on a dysfunctional prison grievance system because Harbridge did not have a

protected liberty interest in any particular grievance system. See Ramirez v.

4 15-55841 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no protected liberty interest in any

particular grievance system).

The district court properly dismissed Harbridge’s claims regarding the

grievance system at Pleasant Valley State Prison for improper venue. See 28

U.S.C. § 1391(b) (listing grounds for venue and explaining that a civil action

should be brought in the judicial district in which a substantial portion of the

events giving rise to the claim occurred).

The district court properly dismissed Harbridge’s retaliation claim against

Porter and Nungary because Harbridge failed to allege facts sufficient to state a

claim. See Rhodes, 408 F.3d at 567-68.

The district court dismissed Harbridge’s retaliation claim against Reed in its

initial screening order before any response by the defendants on the ground that

Harbridge failed to allege an adverse action that chilled his speech. Harbridge,

however, alleges that Reed threatened him with a prison transfer if he continued to

write letters of complaint, which is sufficiently adverse to state a retaliation claim

even if the threat was never carried out. See Brodheim v. Cry, 584 F.3d 1262, 1270

(9th Cir. 2009) (“[T]he mere threat of harm can be an adverse action, regardless of

whether it is carried out because the threat itself can have a chilling effect.”).

Harbridge was not required to plead facts showing that his speech was actually

chilled, only that the threat would chill a “person of ordinary firmness.” Id. at

5 15-55841 1271 (“an objective standard governs the chilling inquiry”). We reverse and

remand for further proceedings as to Harbridge’s claim against Reed only.

We do not consider any arguments that Harbridge fails to raise in his

opening brief, and we reject Harbridge’s contention that he properly raised issues

by referencing his briefs before the district court. See Indep. Towers of Wash. v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003) (explaining that the court cannot

“manufacture arguments for an appellant” (citation omitted)).

Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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